- The US presidential election is very close between Joe Biden and Donald Trump.
- Both camps have announced their intention to take legal action to ensure the fairness of the ballot.
- The scenario of the 2000 election, where it took more than a month to know the winner, is possible.
Too close to call (too tight to slice). This is the expression that sums up, this Wednesday, the presidential election in the United States. On that date, neither Donald Trump nor his opponent Joe Biden have reached the 270 voters needed to be assured of winning.
In theory, everything should be decided in the coming days, as the last votes, especially by correspondence, are counted. But in reality, the electoral battle could drift onto the legal ground and last longer than expected.
What do the two camps want to do?
It was Donald Trump who drew the first. In his speech on Tuesday evening (Wednesday morning in France), the outgoing president assured that he had won, denouncing at the same time – and without any proof – a “fraud” aimed at depriving him of his victory. This declaration sowed confusion even in his camp: “This argument [d’une fraude] does not rest on any basis, explained former Republican Governor Chris Christie. I do not agree with Donald Trump ”.
Despite the doubts, the latter is determined to go to the end of his fight: “We are going to seize the Supreme Court and make sure that there are not, suddenly, new bulletins appearing at 4 am and which would be added to the total, ”he explained. The Republican candidate here refers to the postal vote, which he has been criticizing for weeks.
These ballots involve a laborious process of counting and checking, and each state has its own rules. Some only count ballots received up to election day, while others will accept ballots up to 10 days after polling day, if they were sent out on or before November 3. This year, the practice has exploded, in particular because of the Covid-19: while 33 million Americans had voted by mail in 2016, this number is expected to double, lengthening the counting operations.
These votes are normally more favorable to the Democrats, they could therefore influence the results several days after the vote, especially in the famous key states (Pennsylvania, for example). What Donald Trump disputes, claiming that “all votes cease”. The camp of Joe Biden obviously reacted, assuring him also wanting to “fight” in justice. The Supreme Court could therefore be called upon to rule on the ballot.
What is the planned route to the Supreme Court?
As political science professor John E. Finn points out in an article in The Conversation, the Federal Supreme Court of the United States does not intervene in most electoral disputes: “it is the States which, with a few exceptions, organize the elections (…) Consequently, each contestation on the vote is examined by the courts of the State in question (state courts) by applying the laws of that State (…) The final decision on an electoral dispute normally rests with the Supreme Court of the State concerned ”.
For the Federal Supreme Court to take up a case, “there must be a doubt about the respect of federal constitutional rights, such as that of the 14th Amendment to the Constitution”. It guarantees every American citizen respect for their rights and equal treatment under the law (equal protection of the laws).
Has the Federal Supreme Court ever had to rule on a presidential election?
Yes, twice. The first, in 1876 (but it was then an electoral commission in which also sat senators and representatives) and the second, much more recent, in 2000. That year, George W. Bush (Republican) confronts Al Gore (Democrat). On the evening of November 7, neither side can claim victory because the results are too close in Florida. However, without the 25 voters of this state, impossible to be elected.
After a first count, Bush has a lead of only 1,784 votes (on 5.6 million ballots), and Al Gore’s team calls for a recount in this state whose governor is none other than George Bush’s brother . On November 10, the gap was reduced to… 328 votes! On November 16, 2000, after the deadline for transmitting votes had passed for two days, the Florida Supreme Court authorized the counting operations to continue. On November 26, Secretary of State Katherine Harris proclaimed Bush the winner with 537 votes (0.009% of the vote).
But the Florida Supreme Court is calling for a new recount in early December. This is interrupted by the Federal Supreme Court, seized by the Bush camp. On December 12, in their “Bush v. Gore ”, the federal judges decide (by 5 votes to 4) that the Florida court has made an unconstitutional decision asking for a recount of the votes after the legal deadline. According to the Supreme Court of the United States, this conflicted with the 14th Amendment to the Constitution, mentioned above. Operations are therefore interrupted and George W. Bush becomes the new president of the United States, more than a month after the election.
Will such a scenario happen again this year? On Wednesday night, all eyes were turned not to Florida, but to Michigan, where Joe Biden had less than 10,000 votes in advance after the counting of 95% of the ballots. Appeals cannot therefore be excluded. In the meantime, Trump asked, this Wednesday evening, for a recount of the votes in Wisconsin: Joe Biden is in the lead with 20,000 votes in advance in this state which has ten major voters. There remain 300 votes to be counted, according to the New York Times.
For John E. Finn, it is the very legitimacy of the institutions that could be called into question this year. “In 2000, the Supreme Court decision settled the election, but only because both camps accepted its authority (…) Twenty years later, when American society is polarized to the extreme, it does is not at all sure that the people accept the legitimacy of the Supreme Court as a neutral arbiter, ”he concludes.